No: 200604242/C2 
Neutral Citation Number: [2007] EWCA Crim 3227
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 13th November 2007
 
B e f o r e:

LORD JUSTICE GAGE

MRS JUSTICE COX DBE 
 
DAME HEATHER STEEL DBE 
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R E G I N A 

v 

SEHEBDEEP SINGH JOHAL 
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Mr D Martin‑Sperry appeared on behalf of the Appellant 
Mr A Dowden appeared on behalf of the Crown 
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Judgment

1.	LORD JUSTICE GAGE:  Sehebdeep Johal is now aged 25.  
2.	On 24th July 2006 at Isleworth Crown Court he was convicted of violence disorder, count 1, aggravated burglary, count 2, wounding with intent to do grievous bodily harm, counts 3 and 4 and criminal damage, counts 5 and 6.  He was convicted by the jury on a majority in each case of 10 to 2.  On 18th August 2006 he was sentenced to a total of 5 years and 6 months' imprisonment.
3.	There was one co‑accused who appeared at the trial, that was his brother, Harkamaldip Johal.  He was the younger brother.  He was convicted by a majority of 11 to 1 on all counts and sentenced to a total of 7 years and 6 months' imprisonment.  He was also made the subject of a licence condition in the same way as the appellant has been.
4.	This appellant now appeals by leave of the Full Court.  It is right that we say at once that the Full Court gave leave to appeal on one ground and one alone.  There were other grounds but in the course of giving the judgment of the Court, Davis J said of those: 
"In presenting his case, Mr Martin‑Sperry today has abandoned three of the four grounds alluded to in his written grounds.  He had complaints about the way in which the evidence of DC Osler was dealt with concerning a complaint by Harpreet Kaur of intimidation by Inderpal Chana and also alluded to the possibility of wishing to adduce fresh evidence in that regard.  He has not pursued that application to adduce fresh evidence and has accepted that there is nothing really in the point about the DC Ostler.  He also in his grounds had alluded to what was said to be a failure by the trial judge to give sufficient directions as to separate treatment between the case of the brother on the one hand and this applicant on the other.  It is clear, however, from the summing‑up read as whole that the trial judge had given sufficient directions in that regard." 
We mention that, at this stage, because although there is one ground before us on which leave was given, at some stage during the course of his submissions to the Court, Mr Martin‑Sperry, who appears on behalf of this appellant, sought, in a skillful and attractive way, to resurrect the other grounds of appeal.  We reject that invitation to deal with them. He has not got leave for them and they play no part other than as a final long stop to his ground of appeal, Mr Martin‑Sperry invites this Court to say that this is one of those cases where it is has a "lurking doubt" as to the correctness of the conviction.  We deal with that as and when we come to it if necessary.
5.	As will be apparent, the issue in the case was one of identification.  The evidence disclosed the following facts.  On the evening of 26th December 2005 the Chana family was attacked in their home at 29 Marlborough Road, Southall, in London. The attack was mounted by about 20 youths armed with various weapons including a sword, a knife, a baseball bat and sharpened hockey sticks.  Inderpal Chana was stabbed (count 3).  His mother, Resham Kaur Chana, was hit on the head with a hammer wrapped in a cloth (count 4). Substantial damage was inflicted on the Chana family car (count 5) and window frames of the house were smashed (count 6).  The attack was witnessed by Inderpal's sister, Amarjit Kaur Chana.  The motive for the attack appears to be, and was said by members of the Chana family, to have been a dispute over a burn on the carpet at 18 Marlborough Road, a house let by the Chana family to the Bajwa family of whom the appellant and his brother were members.
6.	All the members of the Chana family believed the Bajwa family consisted of parents and an older and shorter son, named Navjit (he is the appellant), and a younger and taller son, named Kuljit (he was the co‑accused) and a 15‑year old daughter, Harpreet.  
7.	It was not in dispute that the appellant and Kuljit, as we shall refer to the co‑accused, were in reality, as we have said, the appellant, Navjit, and his brother the co‑accused Harkamaldip Johal, Kuljit.  They were Bajwa nephews who lived with them at 18 Marlborough Road.  
8.	The prosecution case was that the appellant and his co‑accused were jointly responsible for organising and carrying out the attack.  It was the defence case, so far as the appellant is concerned, that he was not present at the time of the attack on 26th December 2006. He said he had no knowledge of it. He had an alibi for that day, saying that he had been at home all day with his wife who was at the time pregnant.  As we have said, the issue for the jury was whether they were sure that the appellant had been correctly identified as a person who was jointly involved in this attack.
9.	The appeal, therefore, in ground 1, for which leave has been given, centres on the judge's directions in his summing-up in respect of the identification evidence.In a little more detail the evidence before the jury was as follows.  Inderpal Chana said that the major incident on 26th December 2005 was preceded by an incident the previous day which involved Kuljit.  He and Kuljit had a confrontation in the street on that day.  The incident ended with a threat made by Kuljit that "he would call his boys" and he, Inderpal, should do the same.  Inderpal said that he immediately reported the matter to the police.
10.	The following evening he opened the front door to his house and was confronted by a group of young men. The disturbance then took place which forms the basis for the counts on the indictment.
11.	Inderpal said that he thought that Kuljit, whom he described as the younger son, had a knife and the appellant, who he described as the older brother, had a stick, which he believed the appellant had used to hit his mother.  On 20th January he went to the police station and he identified the appellant and Kuljit as the attackers, although at the time of his statement he had not known the names of the brothers.  He denied a suggestion that was put to him in cross‑examination that Amarjit, his sister, had had a relationship with Kuljit and that Kuljit had spurned her offer of marriage.  He also denied that he had on two occasions threatened Harpreet, the sister of the accused.
12.	Resham Kaur Chana gave evidence.  She said that she had witnessed the incident between Inderpal and Kuljit on the previous day, that is the 25th December.  The Following day, when the major incident occurred, she said that she recognised Kuljit as being one of the men who had forcefully entered her house and that he done so in company with a person whom she described as a "fat man".  At trial she gave no evidence identifying the appellant.
13.	Amarjit Chana, the sister of Inderpal, gave evidence.  She said that she too had witnessed the incident between Inderpal and Kuljit on 25th December.  Her evidence about the incident on the following day was as follows.  She said she saw Kuljit, or the man she knew as Kuljit and a "chubby fat man" breaking through the front door.  She said that she also saw the appellant, whom she knew as Navjit, standing in the background, a bit behind his brother.  However, she said that she had only seen the appellant for a few seconds.  She said that she had been about 2 metres from the front door, and saw Kuljit stabbing her brother and the chubby man hitting her mother.  She said she had regularly seen both the accused in Marlborough Road before the incident.  She also said that she had attended an identification procedure on 28th January 2006 and that she identified the appellant and Kuljit as the people who had forcibly entered her home.
14.	In cross‑examination it was suggested to her by Mr Martin‑Sperry that in a statement that she had given to the police shortly after the incident, she had told them that Kuljit had entered the house first and that her view had been partially obstructed by the fat man of the other men outside.  She told the police that she would therefore not be able to identify those men as she did not see their faces.  
15.	In response to that cross‑examination she said that, after she had made her statement, she had remembered that she had in fact seen the appellant for a couple of seconds outside the house and that the fat man had not been standing in one position all the time.  She said she did not go back to the police station to correct her statement because the family were trying to forget about the incident.  She also thought that she had done what was required of her by identifying the appellant at the identification procedure.
16.	At interview the appellant made no comment responses to all the questions asked of him and handed in a handwritten statement which foreshadowed the evidence that he was subsequently to give.
17.	He gave evidence.  He said that on 26th December 2005 he had been looking after his wife at home who was experiencing a difficulty pregnancy.  He recalled that his brother, Kuljit, had asked him to accompany him to a party that night but he declined that invitation.  His brother gave him a DVD film which he and his wife had watched in their bedroom between 6.30 in the evening and 9 o'clock.  He said that he knew the Chana family and would often say hello to them in the street.  He said he had never had an argument with them and he knew nothing of a dispute with them over a burnt carpet.  He also knew nothing of his brother's dispute with Inderpal.
18.	The appellant's wife, Amandeep Kaur, and his cousin, Harpreet, gave evidence confirming the appellant's account.  His wife said that they had watched an Indian film in their bedroom that evening and Harpreet said that she had been in the house with the appellant all day.  However, she also said that she had gone to sleep at about 8 o'clock, namely the time of the attack.
19.	As we have said, there is one ground of appeal.  It is that the judge failed to draw to the attention of the jury the specific weaknesses in the identification evidence.  Mr Martin‑Sperry submits that the weaknesses were not small divergences but were central points. The judge ought, he submits, to have listed each of these specific weaknesses identifying them for the jury.  As it was, his submission is that the jury had to pick its way through the evidence and sort out for itself what were the weaknesses.
20.	In his skeleton argument Mr Martin‑Sperry has relied in support of these submissions to the decision of this Court in R v Fergus (1994) 98 Cr App R 313, where it is said in the judgment of the Court at page 318: 
"Generally, it has often been said that it is not essential that a trial judge should rehearse all the arguments of defence counsel: McGreevy v Director of Public Prosecutions... That is so.  But in a case dependent on visual identification, and particularly where that is the only evidence, Turnbull makes it clear that it is incumbent on a trial judge to place before the jury any specific weaknesses which can arguably be said to have been exposed in the evidence.  And it is not sufficient for the judge to invite the jury to take into account what counsel for the defence said about the specific weaknesses.  Needless to say, the judge must deal with the specific weaknesses in a coherent manner so that the cumulative impact of those specific weaknesses is fairly placed before the jury."
In our judgment, there is little to choose between what is said in that case and what Steyn LJ, giving the judgment of the court said in R v Pattinson & Exley [1996] 1 Cr App R 51.  That decision is relied on by Mr Dowden who appears on behalf of the respondent.  The passage most relevant is one that appears at page 56E of the judgment in which Steyn LJ says: 
"The real question perhaps is did the summing‑up sufficiently expose to the jury the weaknesses and the dangers of the evidence in general and in the circumstances of the particular case?" 
21.	Mr Martin‑Sperry has referred to the background to the case, namely one which involved two co‑accused, both of whom were brothers, both of whom Mr Martin‑Sperry stresses were completely different in their life‑style, in what they did on the evening and their personal circumstances.  Mr Martin‑Sperry delicately but firmly points to the fact that his client's way of life was rather more respectable than that of his brother.  Be that as it may, the main point that he relies on are the specific weaknesses which he submits appear in the evidence of the witnesses.
22.	So far as Inderpal Chana is concerned, he submits that there is a striking difference between his evidence and that of his mother's and his sister because both of them described "a chubby man" as striking his mother, whereas Inderpal describes the appellant as the one who struck his mother.  Furthermore, he submits that there is further weakness in Inderpal's evidence because there is an internal inconsistency in his witness statement.  In the earlier part of his witness statement he describes the appellant as the one who struck his mother; in the later part of the witness statement he describes the chubby man, the larger man as the person who struck his mother.  Accordingly it is submitted those are two striking and specific weaknesses in his evidence.  He further submits that when Inderpal came to identify the two accused, he may well have contaminated, that is caused the other two witnesses wrongly to identify this appellant.
23.	So far as Amarjit is concerned, Mr Martin‑Sperry lists a number of specific weaknesses in relation to her evidence.  Principally he relies on the fact that she, in her statement, was silent about the part played by the appellant in the attack.  She does not describe him as doing anything, indeed she does not describe him as being there.  Submits Mr Martin‑Sperry, she goes further than that in her witness statement. In that statement she said she could not identify any of the other persons apart from Kuljit and the chubby man.  However, when it came to her giving evidence, her evidence was that the appellant was a bystander to the attack on her brother and her mother.  It is submitted that this had not been mentioned by her before, although she had attended an identification parade and had identified the appellant.  He also submits that she said in evidence something which had not been said before, namely that she knew the appellant by sight and by name but she had not identified him in her witness statement.  So it is submitted that there is a real possibility that there may have been some contamination between the evidence of her brother and her evidence.  That, it is submitted, may have taken place when all three of the witnesses, Inderpal, Amarjit and her mother attended for the identification parade and were put together in one room. 
24.	Bearing in mind all these specific weaknesses it is submitted that the judge ought to have given a careful direction drawing them properly to the attention of the jury.  The fact that he did not means, it is submitted, that the conviction is unsafe and , as we have said, even if the Court is minded to take the view that the summing‑up was adequate, there remains a lurking doubt as to the correctness and safety of the conviction.
25.	There can be no doubt that there was a conflict between the evidence of Inderpal, on the one hand, and, on the other, of his mother, Resham, and his sister, Amarjit, as to what, if anything, the appellant did on that evening.  All three said in evidence that he was present.  There is also no doubt that in her witness statement Amarjit made no mention of the appellant being present on the evening of the incident.  Not only that, despite the fact that she knew the appellant by sight and by name, as she said in evidence, she said in her witness statement, positively, that she could identify none of the other members of the group other than the co‑accused and the chubby man.  These were weaknesses and specific weaknesses in the identification evidence.  
26.	However the judge in his summing‑up mentioned both matters.  As to the former, although his recital of the evidence makes it clear that there is such a conflict the judge at no stage drew attention to the fact that the jury might think it was a specific weakness.  
27.	So far as the second matter is concerned, the judge put this before the jury by reciting Mr Martin‑Sperry's cross‑examination of Amarjit.  He said at page 35C of the summing‑up:
"There was important cross‑examination on behalf of Mr S Johal by Mr Martin‑Sperry.  
She was referred to her written statement [we interpolate Amarjit].  This is the statement she made to police shortly after the incident took place and she was referred to a passage in that statement which says this: 'Kuljit at first' this is alleged to be Mr H Johal, 'was partially obstructed by the chubby male and he was blocking the view of the other males involved of whom I would not be able to identify, as I did not see their faces at all.' 
'So,' was the question, 'if you say that you did not see anybody other than Kuljit and in particular did not see Mr S Johal at the scene at all,' although she did not say that, she said:  'I did not see their faces at all, 'how is it you identify him now from the witness‑box?"  
The judge then went on to give her explanation for that matter.  
28.	It seems to us that in that passage the judge was making it perfectly clear to the jury that it could and should consider this criticism carefully, namely the criticism which was made by Mr Martin‑Sperry of that witness. 
29.	So far as the other matter is concerned, the judge had given, in general terms, the standard direction which is given to juries in identification cases.  He reminded them of the risk of injustice.  He reminded them of the dangers of a witness recognising somebody who he or she says she knows.  Mr Martin‑Sperry submits this was not in reality a recognition case, although as the evidence turned out all the witnesses, at least Inderpal and his sister, Amarjit, both said that before the incident they had seen the appellant, and in Amarjit's case, the appellant himself in evidence accepted that he had seen her in the street.
30.	We have no doubt that this was not a case where the weaknesses in the identification evidence were such as ought to have caused the judge to remove the case from the jury at the close of the prosecution case.  That submission is made in the skeleton argument on behalf of the appellant but was not specifically pursued before us this morning.  It would, in our judgment, have been better if the judge had drawn the attention of the jury to the fact that there were specific weaknesses, nevertheless, the jury would have been well aware of what they were and of the inconsistencies, both between the witnesses internally and between Amarjit's evidence and that of the other witnesses.  The judge had given them, as we have said, the main thrust of the identification direction in the first part of his summing‑up on this point.  He warned the jury specifically about the short time that Amarjit had the appellant in her sight.  He warned the jury that the witnesses had given different accounts of how long the incident lasted.  He warned them about the danger of mistaken recognition. He also, in a later passage, reminded the jury that Amarjit had given no description of the appellant in her witness statement and he reminded them of the inconsistency of her statement in relation to Inderpal's evidence.  Of that he said, when dealing with the identification evidence, at page 39H of the summing‑up:
"Now, so far as the identification procedure is concerned that Amarjit underwent.  I just remind you that she did not ever give a description of Mr S Johal to the police, prior to the identification procedure in relation to Mr S Johal and what has been argued to you it is a matter for you, is that the identification officer might not have shown that parade to her because there had been no ‑‑ or, perhaps, should not have done so because there had been no previous description given of, Mr S Johal, by Amarjit to the police.  It is a matter for you as to how reliable you think that identification evidence is." 
Taken as a whole, in our judgment, the summing‑up was quite adequate to point out the weaknesses in the identification evdence to the jury.  Essentially the points made on behalf of the appellant are jury points which we have no doubt were made and forcibly made by Mr Martin‑Sperry in the course of his final speach.  In the circumstances, we are quite satisfied that the verdicts of the jury are safe.  
We have considered the question of whether there is a lurking doubt and we have no hesitation in rejecting that submission as well. For those reasons this appeal must be dismissed.  
31.	MR MARTIN-SPERRY:  There was a small matter of detail in my Lord's judgment.  I was tempted to be at my feet at that stage.  Different courts have different approaches.  It was this.  My Lord said that all three of them, ie Inderpal, mother and Amarjit said in evidence that he was present.
32.	LORD JUSTICE GAGE:  I am sorry if I did say that, and you may very well be right.  She did not say that. I thought I specifically said she had not. I will check the transcript to make sure.  Thank you very much.  
33.	MR MARTIN-SPERRY:  That was the only matter I wanted to raise.